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Supreme Court hears case of Canadian photojournalist tortured in Iran

The federal government stood up at the Supreme Court of Canada Tuesday to defend Iran’s right to state immunity against Stephan Hashemi's bid to win civil redress for Zahra Kazemi’s torture killing.

Zahra Kazemi, an Iranian-born Canadian photojournalist from Montreal, was taking photographs of protesters outside the notorious Evin prison in Tehran when she was captured, detained, brutally beaten, sexually assaulted and later died of multiple injuries in 2003. (THE CANADIAN PRESS file photo)

To Stephan Hashemi, who was 26 when his mother Zahra Kazemi was tortured to death by her Iranian jailors, it was close to unbearable.

The Canadian government, which railed against Iran as a rogue state and the most dangerous threat to global security, stood up at the Supreme Court of Canada Tuesday to defend Iran’s right to state immunity against Hashemi’s bid to win civil redress for her torture killing.

Hashemi, a Montreal-based web designer, did not attend. He did not want to hear federal lawyers argue he isn’t entitled to a hearing in Canadian civil courts, his lawyers said. “Every time he hears no, it’s hard,” said Mathieu Bouchard.

“Canada is acting in conformity with its international obligations,” said federal lawyer Bernard Letarte. “The obligation to provide civil remedy for acts of torture committed abroad simply does not exist.”

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Letarte said Hashemi’s civil claim is premised on the notion that “there is some type of obligation” for Canada to provide the fair hearing he cannot get in Iran.

“There is none, there has never been one, and there is not one at this particular point,” he said.

“As far as we are concerned,” Letarte went on, Hashemi’s claim is “an appeal to modify legislation . . . it is up to the lawmakers if they see fit to modify the SIA (State Immunity Act) taking into account the repercussions any such changes might have on international relations.”

Canada cut off diplomatic ties with Iran and closed its embassy, but Ottawa says that its State Immunity Act, enacted in 1982, was never intended to provide an exception for domestic civil lawsuits in case of torture or violations of fundamental human rights committed abroad.

However, Hashemi’s lawyers pointed out that Ottawa has made an exception for victims to seek civil remedy in cases of state-sponsored terrorism.

Kazemi, an Iranian-born Canadian photojournalist from Montreal, was taking photographs of protesters outside the notorious Evin prison in Tehran when she was captured, detained, brutally beaten, sexually assaulted and later died of multiple injuries in 2003.

Hashemi, her only son, is now 37 and seeking $17 million in damages on behalf of her estate from the Islamic Republic of Iran, its leader Ayatollah Sayyid Ali Khamenei, and two of its officials: Saeed Mortazavi and Mohammad Bakhsh.

He says the Canadian law that denies him civil redress is unconstitutional.

Hashemi’s lawyer Mathieu Bouchard said courts historically introduced the concept of state immunity and have developed exceptions to it, noting that Canada is one of only 10 countries that later introduced statutes outlining what it entails. The U.S. has created an exception for claims involving torture in the case of Iran and Syria.

Kurt Johnson, another of Hashemi’s lawyers, said it is the job of the high court to interpret Canadian law in a way that gives meaning to the 1960 Canadian Bill of Rights guarantee of a fair hearing, and the 1982 Charter of Rights guarantee of security of the person and fundamental justice.

Johnson argued Kazemi’s son suffered significant psychological harm as a result not just of his mother’s torture and death, but of his inability to access justice in Iran.

Several judges expressed difficulty with how to reconcile the express wording of the federal law with the concept of Canada’s obligation under the UN convention against torture. Chief Justice Beverley McLachlin also wondered just how broadly it should apply.

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